The Gazette 1985

JANUARY/FEBRUARY 1985

GAZETTE

sewers of the Sanitary Authority for the district, sewerage from premises within that district. As the Court regarded the instant case as being substantially on all fours with Short's case the answer to the third question posed by the Arbitrator had to be in the negative. As to the fourth question, it was clearly decided in Short's case that a situation where planning permission is refused on the grounds that available sewerage facilities although sufficient to meet the requirements of the proposed develop- ment have been " p r e - emp t e d" for other building developments contemplated by the local authority but not yet carried out, cannot be regarded as a situation where planning permission is refused "by reference to any existing deficiency in the provision of water supplies or sewerage facilities and the period within which any such deficiency may reasonably be e x p e c t e d t o b e m a d e g o o d " . Consequently, if permission is refused on such grounds a claim for compensation under Section 55 of the Act of 1963 cannot be defeated by pleading in answer the provisions of Section 56 (1) (b) (i) of the same Act. But the Court regarded the form of this question as being somewhat unsatisfactory since, as was observed by the Chief Justice in Short's case, it is hypothetical and based on many supposi- tions. This was highlighted in the later case of McKone Estates Limited -v- Kildare County Council (unreported H.C. 24.6.1983) which involved an actual, as distinct f r om a hypothetical claim for compensation under Section 56 which the Arbitrator has to consider in this case. Having regard to the decision of the Supreme Court in the Short case a decision by a Planning Authority to refuse permission for a development on the g r o u nd that the capacity of the sewer of the Sanitary Authority for the area concerned was pre-empted for other building developments contemplated by the local authority but not yet carried out would in all probability be invalid and ultra vires. But whether such a decision can give rise to a claim for compensation under Section 55 of the 1963 Act without first requiring the applicant to take whatever steps are open to him to quash the decision and proceed with his development is a moot point. F or this reason rather than give a simple " y e s" or " n o " answer to Question 4 the Co u rt preferred to reply to it as follows: " A decision by the A c q u i r i ng Authority that the capacity of the Do d d er Valley main Sewer was pre- empted to provide capacity for a scheme of development on other lands, (some of which would possibly or probably be undertaken by a Local Authority), would not entitle the A c q u i r i ng A u t h o r i ty t o r e f u se planning permission for development of the Subject L a nd under the

Authority as Planning Authority, to refuse to grant planning permission for a scheme of development on the subject land for the reason that the capacity of the Do d d er Valley main Sewer was p r e - emp t ed to p r o v i de capacity for a scheme of develop- ment on other lands some of which scheme was probably or possibly undertaken by a Local Authority, confer a right to c omp e n s a t i o n ?"

stated to an additional £677,000. The substantial difference between the two amo u n ts depended on how the lands should be valued in so far as they were affected by the County Development Plan, 1972. These lands were designated in the Plan with the letter " Q " which indicated that the entire area so desig- nated was to be preserved as an area of high ame n i t y. This restricted very considerably the development potential of the lands. The Arbitrator next put a value on the lands free from the develop- ment restrictions i mp o s ed by the foregoing zoning provision and this put an additional value of £670,000 on the lands. This necessitated the making of two assumptions which required confir- mation by the High Co u r t, if the higher award was to take effect. One such assumption was that the Co u n ty Council, as Sanitary Authority was obliged to allow effluent f r om the foul water sewers of a scheme of development to be discharged into the Do d d er Valley main sewer. The other was that a plea by Dublin Co u n ty Council that the capacity of the Do d d er Valley main sewer was pre- empted to provide capacity for a scheme of development on other lands (some of which would possibly or probably be undertaken by the County Council) would not entitle the Co u n ty Council to refuse planning permission for develop- ment on the claimant's land under the provisions of the Planning Act, 1963 while at the same time barring any claim to compensation by the claimant by reason of the exclusion f o u nd in section 56(s) (b) (i) of the Act of 1963. Paragraph 19 of the award of the Arbitrator contains the four questions submitted by him for the opinion of the High Court. It reads as follows:— " 1 9 . T h e A c q u i r i n g A u t h o r i t y submitted that a decision, as Planning Authority, to refuse planning permis- sion for development on the subject land for the reason that the capacity of the Do d d er Valley main sewer was pre-empted would not confer a right to compensation. T he questions for the opinion of the High Court are: (1) is the designation " Q " in the C o u n ty Du b l in D e v e l o pm e nt Plan 1972 equivalent to a reserva- tion for a particular purpose? (2) Is the designation " T " in the

The Supreme Court in Dublin County Council -v- Short ([1983] I.L.R.M. 377) dealt with a case stated in similar terms by another Arbitrator in relation to other lands affected by the same C.P.O. The affirmative answers given by the Supreme Court to Questions (1) and (2), which both parties agreed must be given in the present case also, means that the designa- tion of the lands as lands required " to preserve an area of high amenity", or as lands required " to provide for recrea- t i o n al o p en s p a ce a n d a n c i l l a ry structures" amo u n ts to a reservation for a particular purpose within Rule 11 of the Statutory Rules for the assessment of compensation contained in the Fourth Schedule to the Planning Act of 1963 and inserted into section 2 of the Acquisition of Land (Assessment of Comp e n s a t i o n) Act, 1919, by section 69 of the 1963 Act. Consequently, in assessing compensation for the acquisition of land the Arbitrator is not to have regard to any depreciation in values attributable to the fact that the land has been so reserved for such particular purpose in the development plan. The Arbitrator then has to consider whether, in the event of lands being available for general development, such development would in any event be inhibited by lack of water supplies or sewerage facilities in the area as a result of which planning permission for develop- ment could be refused and a claim for compensation defeated by the provisions of section 56 (1) (b) (i) of the 1963 Act. The Arbitrator f o u nd as a fact that there would be no difficulty in providing a water supply to service a development on the land in question; that there was ample capacity in the Do d d er Valley main SeweT to cope with any develop- ment which might take place on the lands, but that the acquiring authority as Sanitary Authority, were contending that the entire capacity of this sewer was pre- empted to provide for the requirements of future development on other lands zoned for development in the 1972 Develop- ment Plan. Under the decision in Short's case the Co u n ty Council are not entitled to rely on such " p r e - emp t i o n" of the capacity of the sewer to defeat a valid claim in reliance on the provisions of the Public Health (Ireland) Act, 1878 and particularly section 23 thereof, to discharge into the

C o u n ty D u b l in D e v e l o pm e nt Plan equivalent to a reservation for a particular purpose? (3) Could the Acquiring Authority, as the Sanitary Authority, have refused to allow effluent f r om the foul water sewers of a scheme of development on the Subject Land to be discharged into the Do d d er Valley main sewer? (4) Wo u ld a decision, ma de at the time of a service of the Notice to T r e a t , by t h e A c q u i r i n g

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